IN RE: The CITY OF NEW YORK (2010)

Judgment, Supreme Court, New York County (Emily Jane Goodman, J.), entered March 20, 2009, confirming an arbitration award which, insofar as challenged, directed petitioners (the City) to pay certain grievants employed as a Public Health Advisors (PHAs) by the New York City Department of Health and Mental Hygiene $1,800 for each year since the filing of the grievance, denied the City's application to vacate the arbitration award, and dismissed the petition, unanimously affirmed, without costs.

The City argues that any monetary remedy for out-of-title work must be the difference in pay between existing titles covered under the parties' collective bargaining agreement, and not some “new term” of compensation “created” by the arbitrator in excess of her powers under the collective bargaining agreement and contrary to the public policy that compensation be negotiated. Whatever arbitral precedent there might be for such a limitation on the arbitrator's remedy-fashioning powers under collective bargaining agreements like this one, it plainly can have no application where, as here, there is no dispute that the hybrid out-of-title duties performed by the PHAs do not match the job specifications of any other existing titles. Surely, given such circumstance, an arbitrator's powers are not limited, as the City appears to argue, to a cease and desist order. Absent a plain and express contractual limitation to the contrary in the collective bargaining agreement, the arbitrator properly directed the parties to negotiate; when the negotiations reached an impasse, the arbitrator properly invited the parties to submit proof of the value of the out-of-title services performed, including their last best offers; and, on that basis, fashioned fitting and necessary relief (see Civil Service Law § 100 [1][d]; County of Rockland v. Rockland County Unit of Rockland County Local of Civ. Serv. Empls. Assn., 74 A.D.2d 812 [1980], affd 53 N.Y.2d 741 [1981]; Matter of North Carolina Cent. School Dist. [North Colonie Teachers Assn.], 60 A.D.2d 496, 498 [1978], affd 46 N.Y.2d 965 [1979] ).